THE BUSH administration has fared miserably with the U.S. Supreme Court when it comes to its more controversial post-Sept. 11 initiatives. That losing streak could be extended now that lawyers for detainees at Guantanamo Bay in Cuba have taken aim at the new Military Commissions Act, which purports to prevent their clients from filing habeas corpus petitions.
If the high court again rules against the administration, President Bush will have himself to blame for obstinately refusing to afford detainees the protection of the Great Writ. But blame also will fall on members of Congress who knew better than to sign off on such flawed legislation. Among them is Sen. Arlen Specter (R-Pa.), the Senate's purported constitutional conscience.
Congress rushed through the Military Commissions Act before its election break in response to the Supreme Court's June ruling that Bush exceeded his authority by establishing military tribunals without congressional authorization. The court also rejected the administration's argument that it lacked jurisdiction to decide that issue.
In separate 2004 cases, the justices held that both U.S. citizens and foreigners detained at Guantanamo could challenge their confinement. Given that history, Specter warned that another judicial rebuke was coming if the Senate barred habeas corpus appeals.
"Surely as we are standing here, if this bill is passed and habeas corpus is stricken, we'll be back on this floor again," Specter said.
Yet after his habeas corpus amendment was shot down, Specter and 13 other supporters voted for the flawed Military Commissions Act. Specter implied that it was all right for Congress to ignore the Constitution because the high court would "clean it up" on appeal.
On Wednesday, that clean-up process began when lawyers for some of the hundreds of Guantanamo detainees with pending habeas complaints asked a U.S. court of appeals to allow their clients to continue challenging their imprisonment, despite the Military Commissions Act.
Echoing one of Specter's arguments, the lawyers noted that the Constitution allows Congress to suspend habeas corpus only in "cases of rebellion or invasion." Serious as the terrorism threat may be, it is neither an invasion nor a rebellion.
The appeals court has a choice: either declare the Military Commissions Act unconstitutional or interpret it in a way that doesn't jeopardize pending habeas actions. Either way, the Supreme Court likely will be asked to resolve the issue.
Even if Specter and other supporters of the Great Writ had voted against the Military Commissions Act, it probably would have passed. But the margin would have been narrower if they had been less willing to punt the question of whether the legislation violates the Constitution.
During John G. Roberts Jr.'s confirmation hearings, Specter complained that the high court had appointed itself Congress' "taskmaster." Roberts replied: "I don't think the court should be a taskmaster for Congress. The Constitution is the court's taskmaster, and Congress' as well."
If Congress took its responsibilities to uphold the Constitution more seriously, there would be fewer problems for Chief Justice Roberts and his colleagues to "clean up."